Green v. . Biggs

Allew, J., after stating the case: Two questions are presented by the appeal: 1. Does the complaint state a cause of action? The principle seems to be generally recognized that a private charitable institution, which has exercised due care in the selection of its employees, cannot be held liable for injuries resulting from their negligence, and the rule is not affected by the fact that some patients or bene *421 ficiaries of the institution contribute towards tbe expense of their care, where the amounts so received are not devoted to private gain, but more effectually to carry out the purposes of the charity. The rule is otherwise where fees are charged with the expectation and hope of securing gain and profit and the proprietors of institutions of this class are held to the duty of ordinary care in the treatment and protection of those intrusted to them, and are responsible for injuries resulting from failure to perform this duty. The cases in support of these propositions will be found in the note to Duncan v. Nebraska Sanatorium Assn., A. and E. Anno. Cases, 1913, E 1129. The defendant is the proprietor of a private institution, maintained for gain and profit, and the sufficiency of the complaint depends, therefore, on whether it alleges actionable negligence. In passing upon the complaint we must construe it liberally, and “If it can be seen from its general scope that a party has a cause of action or defense, though imperfectly alleged, the fact that it has not been stated with (technical accuracy or precision will not be so taken against him as to deprive him of it. . . . If any portion of it, or to any extent it presents facts sufficient to constitute a cause of action, or if facts sufficient for that purpose can be fairly gathered from it, the pleading will stand, however inartificially it may have been drawn, or however uncertain, defective, or redundant may be its statements; for, contrary to the common-law rule, every reasonable intendment and presumption must be made in favor of the pleader. It must be fatally defective before it will be rejected as insufficient.” Brewer v. Wynne, 154 N. C., 467. When so considered and construed, we are of opinion the complaint-states a cause of action. It alleges that the intestate of the defendant was received into the institution of the defendant for hire; that he was old and helpless; that he was placed in an upper room of a wooden building; that the windows of his room were closed and he could not open them; that the only exit from his room was on the hall; that there was no attendant near him; that the defendant maintained a fire in a furnace under the house, night and day; that he had a watchman employed whose duty it was to watch the fires and protect the premises; that .the defendant permitted the watchman to leave the premises and put no one in his place; that- the fire which caused his death started at or near the furnace, and there was no one present to extinguish it or to give the alarm; and with these facts admitted, as they are by the demurrer, the jury would have been warranted upon an issue submitted to them in finding that the defendant did not exercise the care of a person of ordinary prudence, and that this was the cause of death. *422 2. Is tbe part o£ tbe charge copied in tbe statement of tbe case objectionable? Tbe position of tbe defendant is tbat tbe complaint alleges that tbe deceased was helpless, and tbat tbe plaintiff has been permitted to recover damages upon evidence tending to prove tbat be was of average health. It is true tbat a complaint proceeding upon one theory will not authorize recovery upon another entirely distinct and independent theory (Morse v. R. R., 122 N. C., 892), and that proof without allegation is as unavailing as allegation without proof (McCoy v. R. R., 142 N. C., 387); but it is clear from the record tbat there was no contention in tbe Superior Court tbat there was a variance between tbe allegations and tbe proof. Tbe defendant raised no objection to tbe evidence tbat tbe deceased was of average health, and being in and material, it became tbe duty of tbe court to state tbe contentions of tbe parties arising thereon. Not only was there no objection, but it also appears tbat the defendant introduced the second paragraph of the complaint, alleging tbat tbe deceased was helpless, as substantive evidence of bis physical condition and for purposes of impeachment. Tbe court was justified in assuming, in the absence of objection and after the defendant introduced tbe complaint, that tbe defendant, instead of relying upon the exception to the evidence upon the ground of a variance, preferred to place tbe plaintiff before the jury under the charge of alleging a cause of action based upon tbe helplessness of tbe deceased, and of demanding large damages upon tbe ground that be was in good health except for neuralgia, and this was doubtless tbe stronger position; .and having bad advantage of it, he ought not to be allowed now to change front. It will also be noted that tbe evidence of good health related to a period anterior to tbe time tbe deceased entered the sanitarium of the defendant. We find No error.